On Point

State v. George W. Lis, Sr., 2008 WI App 82
For Lis: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶7        As relevant here, a person violates Wis. Stat. § 943.201(2) when he or she

intentionally uses, attempts to use, or possesses with intent to use any personal identifying information … of an individual … (a) To obtain credit, money, goods, services, employment, or any other thing of value or benefit.

A violation of the statute is a continuing offense. State v. Ramirez, 2001 WI App 158, ¶16, 246 Wis. 2d 802, 633 N.W.2d 656. A continuing offense is a course of conduct that takes place over time, as opposed to a single incident, and is complete when the defendant performs the last act that, viewed alone, is a crime. John v. State, 96 Wis. 2d 183, 188, 291 N.W.2d 502 (1980). So, for example, in a welfare fraud case, the final act is the last receipt of welfare benefits. Id. at 191. In the identity theft context, a person who uses another’s identity to secure employment commits a continuing violation of § 943.201(2) so long as the person receives wages or other benefits from the employment. See Ramirez, 246 Wis. 2d 802, ¶17.

State v. George W. Lis, Sr., 2008 WI App 82
For Lis: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding:

¶1        … The key question in this appeal is whether Lis’s crimes continued after the fraudulent accounts he opened were closed. We conclude they did not. ……

¶8        In this case, Lis’s offense continued into 2003 and 2004 only if he received a “thing of value or benefit” after the accounts were closed in 2000.  A “benefit” is “something that guards, aids, or promotes well-being: advantage.” Webster’s Third New International Dictionary 204 (unabr. 1993). Similarly, “valuable” means “possessing monetary value in use or exchange” or “characterized by usefulness, worth, or serviceableness.” Id. at 2530. In this case, so long as the Verizon account was open, Lis was using his son’s identity to obtain a “thing of value”—phone service. So long as the credit card accounts were open, Lis was using his son’s identifying information to obtain credit. Once those accounts were closed, however, the benefits to Lis—the phone and credit—ended.

…

¶15      As the example cited in Ramirez illustrates, an identity theft typically involves an initial theft of information, followed by continued use of the information in a variety of ways. It is these two actions—theft and unauthorized use of information—that Wis. Stat. § 943.201(2) was intended to criminalize. While the theft and unauthorized use will likely have ongoing consequences for the victim—and result in ongoing nonpayment of debts incurred—the crime itself consists of the initial theft and the use of the information, not those ongoing consequences.

State v. Kenneth W. Lippold, 2008 WI App 130, PFR filed 8/18/08
For Lippold: Thomas J. Nitschke

Issue/Holding: On a charge of receiving stolen property, venue may rest in the county where the underlying theft occurred (and, provable by circumstantial rather than direct evidence):

¶16   Extrapolating from the holding in Swinson, we conclude that because the crime of receiving stolen property requires more than two acts, and one of the acts is that the property must be stolen and that act occurred in Milwaukee County, venue was properly established. Lippold argues that the element of the crime of receiving stolen property—that the State needs to prove the property was stolen—is not an “act” in the classical sense; rather, the word “stolen” simply describes the type of property needed to fulfill the requirements of the crime. Again, we look to Swinson for assistance. In Swinson, several of the elements are not “acts” as Lippold would have us define them. Instead, they appear to be states of mind. Consequently, we are satisfied that Lippold reads Swinson too narrowly.

The court stresses that the evidence of Lippold’s guilt of the theft itself “was extremely strong,” ¶¶27-28, but the holding doesn’t seem to rest on that perception.

State v. Travis S. Dewitt, 2008 WI App 134, PFR filed 8/19/08
For Dewitt: William E. Schmaal, SPD, Madison Appellate

Issue: Whether someone simultaneously held under personal recognizance and cash bonds can be guilty of bail jumping for acts committed in the jail.

Holding:

 ¶12      … Wis. Stat. § 946.49 provides that someone who “having been released from custody under [Wis. Stat.] ch. 969, intentionally fails to comply with the terms of his or her bond is” guilty of a crime. Dewitt asserts that “release” must mean physical release from custodial confinement, specifically, “the act of liberating or freeing: discharge from restraint.”

…

¶14      It is true that Wis. Stat. §§ 946.49 and 969.02 do not explicitly define “release,” and perhaps it is fair to say that the common meaning of the word contemplates physical release from custody. However, we interpret statutory language in context, “not in isolation but as part of a whole; in relation to the language of surrounding or closely related statutes; and reasonably, to avoid absurd or unreasonable results.” Kalal, 271 Wis. 2d 633, ¶46. There is one important clue that physical release is not the sole meaning of release in the bond context. The court is permitted to impose “a condition that the defendant return to custody after specified hours.” Wis. Stat. § 969.02(3)(d). Because it would be absurd to conclude that conditions of release would then apply when the defendant was outside the jail, but be “turned off” upon return to custody, it is evident that “release” refers to the defendant posting the bond, be it signature or cash, and need not be accompanied by the defendant’s physical departure from the jailhouse.

…

¶17      … Here, Dewitt had three bonds. He was able to make bond on the misdemeanor simply by signing it, and he therefore committed himself to its conditions.^[4] Dewitt was not obligated to sign the bond, especially if he knew he would not be posting cash bond. Thus, while not physically released, Dewitt was released as contemplated by Wis. Stat. § 969.02 when he fulfilled the signature bond. ^[5]

Release “need not be accompanied by the defendant’s physical departure from the jailhouse.” As opposed to what other form of “departure”? The court doesn’t quite get around to saying, which is just as well. What the court does do is hypothecate a non-existent absurd result, ¶14. Why, in the first place, would it be absurd to say that in a very narrow category of cases, a defendant while on release from custody can bail jump but not when he’s back in the pokey? The court doesn’t say. Note, though, that this “absurd result” is literally the only support for the result mustered by the court. Besides, the defendant is returning – from release, back to custody; from exposure to bail-jumping liability, to non-exposure. Or, as the court apparently wants to say, returning from a release accompanied by physical departure from jail back to custody in the jail.The court implicitly recognizes that the defendant has not been “released” if he fails to sign the recognizance bond (¶17). What this means, then, is that “release” is determined solely by whether you’ve signed the bond agreement and not by whether you’ve been, well, released. Why isn’t distinguishing statutory liability on just that basis an absurdity? The court doesn’t say.

Consider, too, the pretrial detention statute, § 969.035(2), which authorizes a court to “deny release from custody” in certain types of cases. Compare that to the language used in the bail jumping statute, § 946.49(1): “having been released from custody …” The court, however, has just said that “released from custody” does not necessarily mean, released from “physical” custody – which makes the pretrial detention language at best superfluous and at worst comically awkward. The pretrial detention statute clearly means that a defendant may be denied “physical” release, whether or not accompanied by corporeal departure from the jailhouse; use of the essentially identical phraseology in the bail jumping statute strongly suggests the same legislative intent. One statute is aimed at preventing release from physical custody, the other penalizes certain acts committed while on physical release from custody.

In the meantime, while the court sorts out the metaphysics of “physical departure,” the diligent practitioner should be alert to the potential disutility of recognizance bonds. This case offers one example (though fault may hardly be assigned counsel for failing to anticipate a client’s disinclination to follow simple rules). More problematically, no sentence credit is awarded custody served under recognizance alongside cash bond, State v. Beiersdorf, 208 Wis. 2d 492, 561 N.W.2d 749 (Ct. App. 1997). That court suggested the following solution: n. 2:

We note that defense attorneys, in countless cases, do ask trial courts to convert personal recognizance bonds to cash bail when their clients have been arrested and do remain in custody on cash bail on subsequent charges. They do so precisely because they want to assure sentence credit on both offenses. That, however, did not occur in this case. …

Same: State v. Elandis D. Johnson, 2008 WI App 34, ¶32.

State v. Eric T. Olson, 2008 WI App 171
For Olson: Byron C. Lichstein

Issue/Holding: The “act other than element” of § 948.075(3) isn’t satisfied by either transmission of live video of the shirtless defendant, or by his prior sexual encounters with others he met on-line:

¶11      Accordingly, we read the statute to require that, before the State may obtain a conviction under WIS. STAT. § 948.075, the defendant must have done an act to accomplish, execute, or carry out the defendant’s intent to have sexual contact with the individual with whom the defendant communicated. ^[6] More significant for purposes of this decision, the statute requires that the act be something other than “us[ing] a computerized communication system to communicate with the individual.” With this understanding of the statute in mind, we turn to address Olson’s conduct.¶12      Olson argues that his use of the webcam to transmit live video of himself shirtless from the top of the chest up does not fit the “act” requirement because it was not an act other than “us[ing] a computerized communication system to communicate with” nora13queen. Wis. Stat. § 948.075(3). We agree.

…

¶16      We conclude that Olson’s use of his webcam to transmit video of himself was, under the circumstances of this case, nothing more than the use of his computer to communicate with nora13queen. Consequently, we disagree with the circuit court and the State that Olson engaged in the type of act required under Wis. Stat. § 948.075(3) by transmitting that video. At the same time, we stress here and below in this opinion that it may be possible to use a communication function of a computer to engage in an “act” within the meaning of the statute.

State v. Dennis Charles Schulpius, 2006 WI App 263, distinguished, ¶¶22-23: Schulpius drove through a neighborhood looking for the supposed girl.

¶24      Olson next argues that the circuit court erred when it concluded that his previous sexual encounters with other women he met chatting on-line satisfied the “act” requirement. The State does not defend the circuit court’s decision on this ground. Rather, the State notes the circuit court’s conclusion and says only that “it is unclear whether that evidence is sufficient to constitute an act to ‘effect’ [Olson’s] intent to have sex with ‘nora13queen.’” We agree with Olson that the circuit court’s conclusion on this topic is in error.¶25      Olson’s admission of previous sexual encounters arising from internet chats might be relevant evidence. For example, it might, depending on other evidence, be used as admissible other acts evidence. But Olson’s admission does not involve an act to accomplish, execute, or carry out his intent in this case. Accordingly, those encounters could not constitute the required act with respect to nora13queen under Wis. Stat. § 948.075(3).

Because the given facts don’t establish a factual basis for the crime, Olson is entitled to withdraw his plea, ¶¶6, 26.

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue/Holding: Providing cocaine to a minor in exchange for sex supported plea-based conviction for enticement within § 948.07(6), ¶23.

State v. Lawrence Payette, 2008 WI App 106, PFR filed 6/30/08
For Payette: Robert R. Henak; Amelia L. Bizzaro

Issue: Whether repeated “dope dating” (giving a minor cocaine on multiple occasions in exchange for sex) amounts to causing the child to practice prostitution within the meaning of § 948.08.

Holding¹: “Practice” prostitution:

¶15      Payette is charged with violating Wis. Stat. § 948.08, ^[7] which provides that: “Whoever intentionally solicits or causes any child to practice prostitution or establishes any child in a place of prostitution is guilty of a Class BC felony.” ^[8] (Emphasis added.) This statute, except for the reference to a child, and the level of punishment, is identical in language to Wis. Stat. § 944.32. …¶16      The term “prostitution” is defined in Wis. Stat. § 944.30(1) to include someone who intentionally “[h] as or offers to have or requests to have nonmarital sexual intercourse for anything of value.” (Emphasis added.) The complaint clearly establishes that RS had nonmarital sexual intercourse with Payette repeatedly in exchange for something of value, namely cocaine. Although there are no reported cases specifically construing Wis. Stat. § 948.08, such is not the case for application of its sister statute, Wis. Stat. § 944.32. In State v. Johnson, 108 Wis. 2d 703, 711-12, 324 N.W.2d 447 (Ct. App. 1982), we explained that under § 944.32, the meaning of causing a person “to ‘practice’ prostitution” is “‘to do or perform often, customarily, or habitually.’” (Citation omitted.) The habitual nature of Payette’s trading cocaine for sex with RS (over thirty times) satisfies the § 948.08 requisite that RS did “practice prostitution” with Payette.

Holding²: “Caused” prostitution:

¶17   As we discussed in , 170 Wis.  2d 676, 682-83, 489 N.W.2d 715 (Ct. App. 1992), a criminal result (death of a person) may occur because of more than one cause. …¶18   Wisconsin JI—Criminal 901 explains: “‘Cause’ means that the defendant’s conduct was a substantial factor in producing” the consequence at issue. (Emphasis added.) The instruction continues to explain that “[t]here may be more than one cause” (of the consequence at issue) and that “[t]he act of one person alone might produce it, or the acts of two or more persons might jointly produce it.” Id.

…

¶21      Payette focuses on only whether the complaint alleges “solicitation,” although that is only one of the two alternative types of conduct prohibited by Wis. Stat. § 948.08. … Although § 948.08 is colloquially referred to as prohibiting “solicitation,” the statute also specifically, and alternatively, prohibits “causing” a child to practice prostitution. As we have seen, “cause” is “a substantial factor” which need not be the first cause, nor the sole cause, of a child practicing prostitution.

¶22      The complaint discloses a pattern in which Payette’s conduct is a substantial factor causing young girls (including RS) to repeatedly and habitually engage in nonmarital sexual acts with him in exchange for something of value, namely the cocaine which he provided. There is no dispute that each victim was under the age of eighteen at the time of the various offenses. On more than thirty occasions, Payette received sex with RS in exchange for cocaine pursuant to “an understanding” between them. Payette’s claim that the complaint does not allege that RS was not a prostitute before their encounter, and that the complaint does not allege that he initially proposed the “understanding” of trading sex for cocaine, is irrelevant to the permitted inference that Payette’s conduct was a substantial factor causing the prostitution so graphically described.

The court also holds, superfluously given its just-announced conclusion that the behavior alleged in the complaint satisfied the elements of the offense, that Payette has no factual-basis attack on his plea, ¶¶25-35. See, e.g., ¶ 27 (“As we have explained, the complaint establishes a factual basis for the pleas”). The court lays out the test for challenging a factual basis: the defendant must “show, by clear and convincing evidence, that there is no factual basis that the conduct admitted to actually falls within the charge,” ¶26; the “whole record,” including the sentencing and defense counsel’s statements, may be considered, ¶27.